Rethinking Negligence in Force Majeure Clauses: Risk Allocation, Fairness and Certainty in Commercial Contracts

摘要

This article will consider the issue of negligence in force majeure clauses in commercial contracts; in particular, whether a party's own negligence can be sufficient to invoke a force majeure clause which makes no express reference to such negligence. The article will attempt to demonstrate that the current approach taken by the courts is jurisprudentially inappropriate and deficient, and then go on to propose a possible reformulated approach which aims to be fairer and more commercially realistic whilst at the same time maintaining commercial certainty.